[1996] OLRB REP. JANUARY 40

3283-95-U Tisdelle Enterprises Limited c.o.b. as Tim Horton's, Applicant V. United Steelworkers of America and John Henson, Responding Parties

BEFORE: Ken Petryshen, Vice-Chair, and Board Members R. W. Pirrie and K. S. Brennan.

APPEARANCES: W. J. McNaughton and A. Tarasuk for the applicant; Paula Turtle and John Henson for the responding parties.

DECISION OF VICE-CHAIR, KEN PETRYSHEN AND BOARD MEMBER K. S. BRENNAN; January 19, 1996

1. This is an application under section 96 of the Labour Relations Act in which Tisdelle Enterprises Limited c.o.b. as Tim Horton's ("Tisdelle") alleges that the United Steelworkers of America and John Henson ("the Steelworkers") contravened section 96(7) of the Act.

2. Section 96(7) provides as follows:

96.-(7) Where a proceeding under this Act has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writ­ing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or employee who have agreed to the settlement and shall be complied with according to its terms, and a complaint that the trade union, council of trade unions, employer, employers' organiza­tion, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).

3. In its Response and at the hearing on January 8, 1996, the Steelworkers took the posi­tion that the application on its face and the representations made at the hearing by counsel for Tis­delle do not disclose an arguable case of a violation of section 96(7) of the Act. In entertaining this motion by the Steelworkers, the Board assumed that the facts relied upon by Tisdelle in support of its application were true.

4. In a section 91 application dated October 26, 1995, the Steelworkers alleged that Tis­delle had contravened what were then sections 65 and 67 of the Act when it suspended and later terminated the employment of John Carvell. The Steelworkers had filed an application for certifi­cation for a bargaining unit of Tisdelle's employees on or about April 25, 1995. Carvell was a union supporter. In its Response to the October section 91 application, Tisdelle disputed the allegations made by the Steelworkers.

5. The parties entered into settlement discussions. The first phase of settlement discus­sions involved Mr. R. Healey and Mr. Henson for the Steelworkers, and Mr. A. Tarasuk for Tis­delle. The one issue which stood in the way of a settlement was Tisdelle's request for a provision that it did not contravene the Labour Relations Act. The Labour Relations Officer advised Tisdelle that the Steelworkers' response to its request was that it did not need such a provision. When the application came on for hearing, Mr. M. Wright was retained to act for the Steelworkers and the second phase of settlement discussions took place between Mr. Wright and Mr. Tarasuk. In the presence of Mr. Tarasuk and Mr. Tisdelle, Mr. Wright resisted a no-violation provision and said that Tisdelle "had nothing to worry about", that "this will not come up again" and that "this will be the end of it". Mr. Tisdelle then instructed Mr. Tarasuk not to insist on a no-violation clause. The parties agreed that the Steelworkers and Carvell shall not rely on the facts set out in the Minutes of Settlement in any other proceeding whatsoever.

6. The terms of the Minutes of Settlement executed by the parties on November 9, 1995, absent Appendix "A", are as follows:

MINUTES OF SETTLEMENT

WHEREAS John Carvell ("Carvell") was terminated by the Employer effective October 13,

1995;

AND WHEREAS the Union filed the above-captioned Application on Carvell's behalf on October 26, 1995;

AND WHEREAS the parties are desirous of settling the dispute between them;

NOW, THEREFORE, it is agreed as follows:

1. Carvell will be deemed to have resigned his employment with the Employer effective October 13, 1995, and all records of his employment shall be amended to reflect that he so resigned from his employment;

2. The Employer agrees to provide forthwith a letter of reference to Carvell, on letter­head or in a style normally used by the Employer in business correspondence, a letter as set out in Append "A" attached hereto. The Employer also agrees that it will restrict its comments on Carvell's employment to the matters set out in Appendix "A", and specifically shall not advise any prospective employers of Carvell, about the facts giving rise to this complainant [sic] but shall mention only that Carvell resigned for personal reasons.

3. The Employer agrees to pay forthwith to Carvell an amount, less such statutory deductions as are required by law, equivalent to seven (7) weeks of work at Carvell's regular rate of pay, based upon a five (5) day work week;

4. An equivalent amount to the amount paid to Carvell pursuant to paragraph 3 above shall also be paid by the Employer to the following individuals: Jo-Ann Bakewett and Mandy Kicks.

5. The above-captioned Application shall be withdrawn by the Union, and the Union, its agents, assigns or successors and Carvell agree that they shall not rely upon any of the facts set out herein in any other proceeding whatsoever, including but not limited to any other proceeding before the Ontario Labour Relations Board.

6. The parties and Carvell agree that these Minutes constitute a full and final settlement of all matters in issue, including all statutory obligations the Employer may have oth­erwise owed Carvell.

Dated at Toronto this 9th day of November, 1995.

"John Henson" "Paul Tisdelle" For the Union For the Employer

"John Carvell" For Carvell

7. By decision dated November 9, 1995, a panel of the Board confirmed the withdrawal of the section 91 application. On or about November 9, 1995, Mr. Henson distributed the following Memorandum to the employees of Tisdelle:

TO: Employees of Tim Horton's Donuts (London)

FROM: John Henson

DATE: November 9, 1995

RE: Termination of John Carvell

As you probably know, John Carvell was fired by your employer effective October 13, 1995.

As you also probably know, John was one of the key organizers of the Union in your workplace.

I am writing to let you know the facts leading up to John's termination and afterwards.

In late September, John learned that management was investigating complaints of sexual harass­ment against him. John gave both management and Joanne Bakewell written apologies for com­ments John had made to Joanne. In the apologies, John said that he had intended the comments as a joke but was very sorry now, that he understood that the comments were not at all funny and that the comments had caused hurt to a co-worker.

Shortly after John made his apologies, he was fired.

The Union is strongly and actively opposed to sexual harassment and to all other forms of dis­crimination in the workplace. The United Steelworkers of America has a well-established policy against sexual harassment. We condemn sexual harassment in the workplace and will take action to prevent it, even if the harasser is an inside organizer.

In this case, the Union was not surprised that management disciplined John for his conduct. However, the Union was also concerned that management treated John more harshly than he would have been treated if he had not been an organizer for the Union. It is against the law in Ontario for an employer to punish any employee for Union activity.

The Union therefore filed a complaint to the Ontario Labour Relations Board. The hearing was to commence today. However, instead of proceeding with the hearing, the Union entered into an agreement with the Employer. As result of the agreement, John will not be returning to work. John will receive a modest amount of termination pay. Two employees who made com­plaints regarding John's conduct will receive monies equal to what John is receiving.

No one is happy that this happened. The Union will continue to work against all forms of sexual discrimination including sexual harassment.

We continue to await the decision of the Ontario Labour Relations Board on whether the Union will be certified to represent you. I will be in touch with you shortly so that we can arrange a unit meeting.

In the meantime, please do not hesitate to contact me with any questions or concerns you may have.

In solidarity,

John Henson

Organizer

Retail, Wholesale Canada

Division of U.S.W.A.

8. Counsel for Tisdelle argued that the Steelworkers were effectively estopped from mak­ing the statements it did in the November 9,1995 Memorandum, or any statements about the Car-yell matter, since Mr. Wright asserted during the settlement discussions that the Carvell matter would not come up again and that this will be the end of it. Counsel argued that Tisdelle relied on Mr. Wright's representations to its detriment. Counsel indicated that Tisdelle was not asking the Board to alter or rewrite the Minutes of Settlement, but rather it was asking the Board to take the appropriate steps to enforce the estoppel created by the Steelworkers' conduct. It was suggested that a posting in the workplace which stated that the parties decided not to litigate the section 91 application involving Carvell and that the Board made no finding that Tisdelle contravened the Act would remedy the Steelworkers' conduct.

9. Counsel for Tisdelle also suggested that the Steelworkers violated Article 5 of the Mem­orandum of Settlement when it issued the Memorandum to employees that referred to the Carvell matter. Since the certification proceeding is still before the Board, counsel argued that the Memo­randum to employees runs counter to the Steelworkers' agreement not to rely on any of the facts set out in the Minutes of Settlement in any proceeding.

10. Having considered the representations of the parties, the Board is satisfied that this application must be dismissed. The majority has reached this conclusion for the following reasons.

11. Subsection 96(7) of the Act is a provision which, in effect, gives the Board the authority to enforce settlements. The language of the subsection makes it clear however, that the provision is limited to settlements in which the terms have been put in writing and signed by the parties. And it is only a complaint by a party to the settlement that another party to the settlement has not com­plied with the terms of the settlement that gives rise to a deemed complaint under section 96(1). We have considerable doubt that the words used by Mr. Wright during the settlement discussions could be used in the circumstances to support an estoppel. However, we need not decide this issue. Whatever legal analysis one wishes to apply to Mr. Wright's comments does not alter the fact that Tisdelle is attempting to seek enforcement of representations by means of section 96(7) which are outside of and not in any way reflected in the terms of the Minutes of Settlement. Subsection 96(7) is not designed to enforce oral representations. Parties who want to rely on section 96(7) to enforce a settlement must ensure that what they want to enforce is contained in the written terms of the settlement. We find it unnecessary to explore the sound labour relations rationale for such an approach.

12. Support for the above analysis can be found in Guillaume Kibale v. The Association Part-time Professors of the University of Ottawa v. University of Ottawa, (dated October 10, 1995, unreported, Board File No. 4302-94-U). The applicant in this case relied on section 96(7) and asserted that the union and the university failed to comply with the terms of a settlement. The applicant relied upon certain verbal assurances. At paragraph 13, the Board made the following comments:

13. ... He [the applicant] was, however, unable to point to any specific provision of the agree­ment which has been violated. Rather, he argues that the settlement means, at least implicitly, that he was, notwithstanding the elaborate provisions of the collective agreement which regulate hiring and assignment of courses, guaranteed a teaching position upon the termination of his suspension. He asserted that verbal assurances to that effect had been made. While that evi­dence might be relevant to the section 69 aspect of Prof. Kibale's application (and, indeed, ulti­mately some of that evidence was heard), I dismissed the application insofar as it pertains to sec­tion 91(7) because that section relates to settlements that have been put in writing and signed by the parties or their agents. Since there was no term of the settlement which could, even remotely, be interpreted on its face to constitute a guarantee of future teaching, I was persuaded that there was no arguable case of a violation of section 91(7).

13. The Board is satisfied that paragraph 5 of the Minutes of Settlement did not preclude the Steelworkers from issuing to employees the Memorandum dated November 9, 1995. Paragraph 5 is a provision commonly found in settlements of this type. By agreeing to such a provision, the Steelworkers agreed not to rely on any of the facts set out in the application in any proceeding before the Board or in any other legal proceeding. This provision would prevent the Steelworkers from relying on those facts in the certification proceeding before the Board. It does not, however, prevent the Steelworkers from communicating with Tisdelle employees about the Carvell matter as it did in the Memorandum.

14. In order to succeed with this application, Tisdelle must establish that the Steelworkers violated the terms of the Minutes of Settlement when it issued the Memorandum dated November 9,1995. The Board is satisfied that Tisdelle has not made out an arguable case for a violation of section 96(7). Accordingly, this application is dismissed.

DECISION OF BOARD MEMBER R. W. PIRRIE; January 19, 1996

1. While I have every respect for the sanctity of settlements, based on the issues in the original dispute, the content of the Minutes of Settlement document and the content of the subse­quent union communication to the employees of Tim Horton's Donuts (London), it is my view that a prima facie case does exist and that the union violated section 96(7).

2. In addition I do not accept the union's proposition advanced in its preliminary motion that to hear the employer's estoppel argument would undermine the settlement process in general or violate the Board's policy of not looking behind settlements. The employer is not asking to have the terms of the settlement altered, it merely wants the settlement it agreed to honoured by the union.

3. In my view the basic components of estoppel exist as set out in Brown and Beatty:

1. There was a representation by words intended to be relied on by the party to which it was directed.

Union counsel's comments to the employer concerning the finality of the settlement, e.g. "This will be the end of it.", etc.

2. Reliance in the form of an action or motion.

The employer's action of signing the Minutes of Settlement without the provision that Tisdelle had not violated the Labour Relations Act.

3. A detriment resulting therefrom.

Through the union's innuendo Tisdelle may, in the eyes of its employees, be thought to have violated the Act.

Further, as a result of the union's memorandum this very difficult issue of sexual harassment remains front and centre in the workplace when, for all intents and purposes, it should be behind the parties.

4. In the circumstances of this case, I would have dismissed the union's preliminary objec­tion and heard the employer's application on its merits.